The ADA at 10

A lot has changed since the Americanswith Disabilities Act (ADA) passed into law 10 years ago. Most sidewalks nowhave wheelchair ramps, stairs usually have either ramps or wheelchair lifts, anddoors and aisles generally are wide enough for a wheelchair to pass throughunimpeded. Just as important, technologies now are available to help individualswith vision, speech, or hearing disabilities hold meaningful jobs.

Access andtechnology are only part of the solution for fully integrating the disabled intosociety, however. “The ADA is the United States’ most ambitious attempt atsocial engineering,” according to Christopher Bell, a blind attorney whohelped craft the law and who is also a managing partner at Jackson Lewis inMinneapolis. Ten years after it was enacted and eight years after it tookeffect, “it’s too early to tell the outcome.”

Corporate humanresources directors say the ADA hasn’t significantly affected theiroperations. “A lot of our accommodations for people who are disabled had beenin place for a long time,” says Robin Hoornstra, HR consulting and equal opportunity officer for Wisconsin Electric in Milwaukee. Butthe ADA did provide a framework for working through the process, “and in thatway, it’s been helpful. It also caused us to be more precise in defining therequirements of a position,” he says.

The strengths andweaknesses of the ADA can be demonstrated in two ways. There has been a dramaticincrease in accessibility to public facilities since its passage. But theunemployment rate for disabled persons remains virtually unchanged since the ADAwas passed in 1990.

As Fred Grandy, president and CEO ofGoodwill Industries International, says, “The Americans with Disabilities Act,on balance, has created a more favorable environment” for people withdisabilities, but it has notactually improved their employment fortunes. For that segment of the U.S.population, unemployment typically is about 70 percent. And in that figure liesthe debate.

ADA Is Misunderstood

“There is a hugemisperception of the ADA,” says John C. Fox, chairman, employment law, at thePalo Alto law firm of Fenwick & West. Bell agrees: “The ADA protects thosewho are able to do the job.” It doesn’t guarantee the right to a job.

“If someone isdangerous or acts out in the workplace, employers can discharge that person.Mental illness is not a defense. It’s just like drinking on the job,” addsRobert Dinerstein, professor of law and associate dean for academic affairs,Washington College of Law at American University in Washington, D.C.

The ability to dothe job is foremost in the minds of employers, and “a lot [of disabled people]don’t have the skills necessary or are unable to work,” says Bell. Butskills can be learned. Goodwill Industries International has the proof. In 1999,“we trained 370,000 people and placed 66,000,” says Grandy. “Weconcentrate on people deemed ‘lost causes.’ We don’t give up on you untilyou give up on yourself.”

Goodwill Industriesis one of several organizations that helps disabled people enter the workforce.Its emphasis, like that of the ADA itself, is on putting capable people to workdespite their disabilities. As Fox says, “The ADA was considered a modesteffort by Congress. It is only a few words different from the Rehabilitation Actof 1973, which applies to federal workers and government contractors -- about 80percent of the large and medium-sized companies -- yet it received many timesthe attention given to the Rehabilitation Act. The reality hasn’t matched itsperception.”

What Constitutes a Disability?

The reason for thedisparity between reality and perception may be the catch-22 that’s writteninto the law. “You have to have a disability using a narrow definition of theterm, but you have to be qualified to work,” Bell says. “Disability” isdefined in the ADA as loss of a “major life activity.” After nearly 30 yearswith the Rehabilitation Act of 1973, the courts have compiled a growing catalogof conditions that constitute a disability, but debate continues.

In 1999, forexample, two nearsighted sisters brought a case against United Air Linesclaiming disability. In that case, Sutton v. United Air Lines, Inc., the Suttontwins applied as global airline pilots for, but were not hired because theycould not meet United’s visual acuity requirement of 20/100 or betteruncorrected vision. The U.S. Supreme Court determined that the use of mitigatingmeasures, including eyeglasses and medications, must be considered indetermining an individual’s disability status. But although they wereprevented from being global airline pilots, they were not prevented fromperforming other pilot jobs. As such, they were not considered disabled.

“The court notedthat simply having a physical or mental qualification standard does not create aperception of disability. That decision circumscribes the number of those whoare deemed disabled,” says Nan Alessandra, an attorney with the New Orleanslaw firm of Phelps Dunbar. “That doesn’t defeat the ADA.”

The Equal EmploymentOpportunity Commission (EEOC) accepted the Supreme Court’s decision. But inits March 1, 1999, “Enforcement Guidance: Reasonable Accommodation and UndueHardship Under the Americans with Disabilities Act,” the EEOC announced thatit intended to continue to interpret the definition of disability as broadly asit can, by reading court decisions narrowly, Alessandra says.

In July 26, 1999,instructions to its field offices, the EEOC noted that the Supreme Court’srecent decisions emphasized that the definition of disability must be determinedon a case-by-case basis, and directed its personnel to use the definition ofdisability that provides ADA coverage for persons with a “record of”disability from which they have recovered in whole or in part, Alessandra says.

Uncertainty for Small Businesses

That further muddiesthe waters for all employers affected by the ADA -- those with 15 or moreemployees -- and is particularly troubling for small businesses. “The ADA iswritten in a vague way, and small businesses may not know whether they are incompliance,” says Mary Leon, spokesperson for the National Federation ofIndependent Businesses.

“It isn’t thecost of accommodations, it’s the cost of litigation that hurts small firms,”she says. For example, “remodeling a bathroom for wheelchair access can costbetween $300 and $3,000, and adding a concrete ramp in lieu of stairs costsabout $1,000 per step,” Leon says, citing the book The Americans withDisabilities Act: Private and Public Costs (National Legal Center for the PublicInterest, 1996). Most accommodations are inexpensive. In fact, the JobAccommodation Network reports that 80 percent of the accommodations it suggestscost less than $500.

In contrast, if anADA discrimination suit is filed, legal fees can be astronomical, she says. A small business typically doesn’t have an attorney on staff andtherefore needs time to find and thoroughly brief the attorney, which takes timeaway from the business. Additionally, suits currently are often filed withoutgiving the firm an opportunity to correct the situation.

For example, Bellfound 112 such suits filed in Florida during the first six months of 2000. Heterms them “drive-by lawsuits,” with attorneys going door-to-door in malls,slapping lawsuits on small businesses. This might change if H.R. 3590, the ADANotification Act, is passed. It would require that businesses be given 90 daysto correct non-compliant situations before a civil action can begin. The factthat employers win 94 percent of the ADA cases brought against them is smallconsolation.

Conditions That Fall Through theCracks

The key to thesewins is that individuals’ abilities to perform major life activities must besignificantly impaired, but employers are not required to accept substandardperformance, says Dinerstein. “So, you could have a serious impairment ordisease, but if it doesn’t affect you now, you’re not covered under theADA.” For example, he says, cancer patients in remission are not coveredbecause there are times when they are not limited.

Likewise, acondition such as paruresis -- shy bladder syndrome -- is not covered. Paruresis,explains Steven Soifer, president of the International Paruresis Association, isa condition that prevents people from urinating on demand and in places wherethey fear they might be seen or heard. But it isn’t considered a disability.The consequence is that firms requiring urine samples for drug testing oftencan’t get samples from people with this condition. Unless a firm is willing toprovide a blood test (which is more expensive than a urinalysis), the employeetypically is fired. Why? Because companies tend to follow U.S. Department ofTransportation guidelines, which as yet don’t allow alternative testingmethods.

Supreme Court Weighs In

The issue ofdisability, however, goes beyond simply hiring and retaining workers. It alsoinvolves disability insurance claims. If a worker becomes unable to perform anyjob in the company, short- and long-term disability claims eventually will befiled, and insurance companies have different payment schemes for physical andmental disabilities.

The 1999 suit Lewisvs. Kmart Corp. is a case in point. At 41, Harold Lewis became disabled byorganic brain syndrome, commonly called depression. He collected short-termdisability for the maximum allowable period of six months. At that point, unableto return to work in his supervisory position or to successfully perform any jobat Kmart, he filed for long-term disability.

In the UnitedStates, long-term disability insurance pays about 60 percent of the employee’ssalary until age 65 for physical disabilities. Mental disabilities, however, arepaid for only two years. When that period expired, Lewis sued Kmart for offeringan unlawful insurance policy to its employees. “The courts said thatdifferential benefits were not unlawful,” says Fox, who was the attorney forKmart. In refusing to hear the case, the U.S. Supreme Court upheld thatpractice.

Despite its clouded language, the ADA is doing what it was designed todo: extend the anti-discrimination protection provided by the Rehabilitation Actof 1973 to employees and job applicants at firms with no government contracts.If Americans want more (or less) than that, Congress would have to amend thelaw.